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Justice

White House Revives ‘Media Shield’ Bill To Protect Journalists

Under fire for the Justice Department’s surveillance of AP reporters’ phone records, the White House is pushing to revive a “media shield” bill to protect reporters who refuse to identify confidential sources. Sen. Chuck Schumer (D-NY) received a call Wednesday from the White House asking him to reintroduce his 2009 bill.

The last media shield bill was thwarted when Wikileaks exposed thousands of pages of secret government documents, killing the political will to bring the legislation to a floor vote. Even before that, however, the Obama administration refused to support Schumer’s legislation unless it excluded reporters who publish leaks deemed to cause “significant harm” to national security.

Though the administration’s renewed interest in the media shield could signal regret over the AP scandal, the compromise bill may not have protected the AP from the DOJ’s subpoena because of this exception for national security leaks. However, Schumer argued the legislation would have made a difference:

In a statement, Mr. Schumer referred to the A.P. subpoena: “This kind of law would balance national security needs against the public’s right to the free flow of information. At minimum, our bill would have ensured a fairer, more deliberate process in this case.

It is not clear whether such a law would have changed the outcome of the subpoena to The A.P. But it might have reduced the chances that the Justice Department would have demanded the records in secret, without any advance notice to the news organization, and it may have allowed a judge to review whether the scope of the request was justified by the facts.

As the New York Times notes, the media shield compromise language would actually help the government pursue reporters to root out leaks of classified information — “Judges could not quash a subpoena through a balancing test if prosecutors could show that the information sought might help prevent a future terrorist attack or other acts likely to harm national security.”

The bill would, however, protect journalists from civil suits attempting to force them to give up sources or information. It would also require the information seekers to prove why their need trumps the need for unfettered media.

Justice

What Can Be Done To Prevent DOJ From Spying On Journalists In The Future

(Credit: AP)

Yesterday, the Associated Press reported that phone records from nearly two dozen phone lines were obtained by the Department of Justice as part of what was likely an investigation into how AP reporters discovered the CIA’s involvement in foiling an Al Qaeda related bomb plot. As Hayes Brown explained yesterday, this investigation probably was motivated by concerns that reporting on CIA’s involvement could have compromised an intelligence operative working within Al Qaeda in the Arabian Peninsula.

Lawmakers on both sides of the aisle have expressed concerns over DOJ’s actions here, potentially providing a rare opportunity to enact law restricting government surveillance. Moreover, there are strong arguments for why DOJ should be required to obtain a warrant from a judge before obtaining journalists’ phone records, especially in a case such as this one where DOJ’s need for the information does not appear to be imminent, the information sought is particularly broad, and the records are likely to remain available even after a delay.

Yet, if change is going to happen, it will likely have to come from what is currently the most dysfunctional branch of government — Congress — rather than the one that is currently most capable of bold action — the judiciary. Ultimately, this incident is likely to be a test of whether Congressional Democrats who opposed expansive surveillance during the Bush Administration will also have qualms with DOJ’s actions now that one of their own is in the White House; and whether Republicans, many of whom had a very different view of media surveillance just a year ago, will be able to pause their political posturing to pass a law preventing similar incidents from occurring in the future.

While the full details of the investigation have not been revealed — AP’s reporting on the surveillance was based largely on a letter DOJ sent to AP informing them of the surveillance — it is unlikely that DOJ’s actions violate the Constitution as it has been interpreted by the Supreme Court. No evidence has emerged that DOJ obtained the contents of actual conversations by AP reporters. Rather, their investigation appears to be limited to discovering which numbers were dialed by AP employees subject to surveillance, and possibly a similar investigation of their incoming calls.

Under the Supreme Court’s 1979 decision in Smith v. Maryland, the Constitution’s ban on unreasonable searches and seizures simply do not apply to this kind of surveillance. According to the five justices who joined the majority opinion, individuals do not have a “reasonable expectation of privacy” in the numbers they dial on their phones because “[t]elephone users . . . typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes.” When information is voluntarily disclosed to a third party, the Court explained the person disclosing the information “assumed the risk that the information would be divulged to police.”

The best argument for applying a different rule to the AP is that journalists are different from other phone users. Journalists often depend on sources who will refuse to speak to a reporter if their conversation is not kept confidential. If government can discover who reporters have been speaking to, they will chill sources from providing information to journalists, and the public will ultimately be less well informed about the information they need to participate in a democracy. Most significantly, the First Amendment explicitly protects “the freedom of. . . the press,” so a strong textual argument can be made that activities that are essential to journalism enjoy heightened protection under the Constitution.

This argument, however, is unlikely to be embraced by our current Supreme Court. In Citizens United, the conservative justices did not just authorize corporations to spend unlimited money to influence elections, they also dismissed the idea that “the institutional press has any constitutional privilege beyond that of other speakers.” At least until one of these five justices leaves the bench, a robust interpretation of the First Amendment’s freedom of the press is unlikely.

The Constitution isn’t the beginning and the end of American law, and Justice Department regulations do place some significant restrictions on federal law enforcement’s ability to subpoena telephone records from journalists. Beyond requiring the surveillance of AP to eventually be disclosed to AP, they also typically require actions targeting journalists to be personally approved by the Attorney General. What they do not require, however, is for DOJ investigators to obtain a warrant before they conduct the surveillance at issue here. Placing this decision in the hands of the Attorney General is not nothing — the sheer volume of Eric Holder’s workload prevents him from personally reviewing and approving very many things — but it is also not an independent check on DOJ’s ability to target journalists.

At the moment, there appear to be a bipartisan consensus forming that the current checks on DOJ surveillance are not enough — at least in the media context. The question is whether Congress will actually decide to do something about it, or whether they will default to partisan posturing and reliance on a Supreme Court that shows little interest in protecting journalism.

Update

In this case, the decision to seek AP phone records was made by Deputy Attorney General James Cole. Attorney General Holder recused himself.

Alyssa

Bloggingheads With Marc Tracy On The End Of Blogging And The Importance Of Jason Collins

I sat down with The New Republic’s Marc Tracy to talk about his article arguing that blogging is dying, and my response that blogging actually won, and it’s now serving interests other than those of people who wanted an easy way to publish independently. One of the most interesting parts of the discussion for me was the idea that blogging is changing in part because, to make it emotionally and logistically sustainable long-term, people have to embed themselves in larger organizations and to franchise, making blogs mini-publications with a united vision rather than a singular voice:

We also talked about Jason Collins’ public coming out, and how sports, which were a leader in civil rights when it came to race, have fallen behind the rest of society when it comes to sexual orientation.

Alyssa

‘Man Of Steel’ And Lois Lane As Actual Reporter

Latepass on this one on a day full of screeners. But I really, really love that the new trailer for Man of Steel presents Superman as a story that Lois Lane is tracking down:

I’m not super-crazy about her giving Clark Kent his nom de guerre. But I really appreciate her being the audience surrogate, the one who frames the mystery of who Clark Kent has tried to be and who—and what—he actually is. Superhero stories have been very, very weighted towards internal journeys and self-discovery in recent years. Man of Steel is right to acknowledge that the emergence of people with superpowers would be an even more seismic change for the rest of us who have to live in the world changed by their presence.

Alyssa

Ken Burns, Sarah Burns, and Raymond Santana on ‘Central Park Five,’ Tabloid Journalism, And Rape Prosecutions

At 9PM tonight, PBS will air Central Park Five, co-directed by Ken Burns and his daughter Sarah Burns. An adaptation of Sarah Burns’ book The Central Park Five: The Untold Story Behind One of New York City’s Most Infamous Crimes, Central Park Five is a searing examination of the 1989 sexual assault on Trisha Meili, a crime for which five young men, Antron McCray, Kevin Richardson, Raymond Santana, Kharey Wise and Yusef Salaam were convicted after coercive interrogations and wrongfully imprisoned. Though their convictions were vacated in 2002 after Matias Reyes confessed to the attack on Meili, a civil suit filed by a number of the men in 2003 is still pending, the district attorney in the case, Elizabeth Lederer, still works for the city of New York, and the city attempted to subpoena outtakes and additional footage from the Burns’ film, an effort that was just recently blocked by a judge.

I spoke at length with Ken Burns, Sarah Burns, and Raymond Santana, one of the Central Park Five, in Pasadena in January. We discussed the role of the media in the case, the impact of courtroom sketches, and why Lederer, who the Burns’ believe had grave doubts about the prosecution, has never spoken about her involvement in the case. This interview has been edited for clarity and length.

I think the movie is tremendous, and it’s wonderful to have all of you here. I wanted to start out by asking, one of the things that really struck me about the documentary that I’m not sure is completely explicit, but that really came across to me, was that New York in this time was a place that was not really safe for women or for young men of color, and this was a case that ended up pitting these two populations that were being poorly served against each other. I wasn’t sure if that was something you wanted to pull out explicitly or that was more interesting to have as an implicit thread.

Ken Burns: We took a lot, we made a lot of narrative decisions that were at least superficially different than other movies that we’d made, so in fact we were trusting that a lot of things would have to remain implicit and not explicit. Explicit could be explicated by narrative. And in this case what we felt would just contain as much of the story as possible, filled with all of its excruciating paradoxes and contradictions. Not the least of it is that. I think that’s a really good point, that the most vulnerable are in some ways the symbolic antagonists in this invented drama.

Sarah Burns: I think Craig Steven Wilder does a good job of giving you at least some sense of that, of the vulnerability of minority teenaged boys especially, as the people who were most likely to be victims of the crime that people were seeing and were concerned about. And that was something that was forgotten. That’s sort of an important thing to understand, both that that was happening, and the way the media was covering not only this case but the time in general was such that we were seeing those people who were most likely to be victims as the source of our problems and not the victims of them.
Read more

Alyssa

The Real Problem With Susan Patton’s Daily Princetonian Letter

Susan Patton’s ur-Jewish Mother letter to the editor, published last week in the Daily Princetonian, in which she tells female students that “By the time you are a senior, you basically have only the men in your own class to choose from, and frankly, they now have four classes of women to choose from. Maybe you should have been a little nicer to these guys when you were freshmen?” has had its awful gender politics dissected to death, significantly by Maureen O’Connor at the Cut. But one thing I’ve been struck by is how little discussion there has been of the decision to publish this particular letter by the Daily Princetonian staff. It’s true that alumni with all sorts of nutty opinions write into their former college papers all the time, with all sorts of advice to offer the students who came after them. But Patton’s letter seems to exist at the crux of a number of trends that are a reality in publishing outside of the Ivory Tower.

The Daily Princetonian seems to be crashed by traffic to the site, so I can’t check to see if they serve ads on the site. But assuming that, like their competitors at the Yale Daily News and the Harvard Crimson, they do, the decision to publish Patton’s letter was a demonstration that college newspapers aren’t just a place to learn the basics of reporting and opinion writing: they’re glomming on to the business realities of online publishing as well. Patton’s letter is exactly the kind of thing that is tremendously clicky, to the extent that it was probably worth it financially to the Daily Princetonian to publish it even if the site ended up offline because of the massive influx of readers. And it seems to have been worth it because of that traffic even though Patton’s letter was likely to embarrass her son, who is an existing undergraduate, and wasn’t presented as part of some sort of larger debate, but rather published on its own. Its value as perspective on the Princeton experience, or even on larger work-life balance issues, is extraordinarily minimal. But the letter does represent a particular kind of trolling of young women about their career and family choices that’s done extraordinarily well online, both in terms of the traffic to the primary stories themselves, and in creating a secondary market to discuss and dissect those stories. And while some criticism has tended to focus on publications that rely heavily on these stories, as The Atlantic has in recent years, in this case, the blowback was aimed squarely at Patton, rather than the Daily Princetonian itself.

All in all, it’s a very successful, cynical execution of a well-established strategy. I don’t think there’s anything wrong with students coming out of college newspapers—particularly those who want to get into the journalism business for real—knowing what it takes to be successful in the news business. But it does depress me a little bit to see those realities trickle down to publications that have the enormous luxury of being supported by alumni endowments. Why not take advantage of the one time you’ll likely be free of traffic and metrics pressure and just put out the best college paper you can?

Update

I should have been clearer in this post that I don’t know the specifics of the Daily Princetonian’s finances. But even when college papers are supported by ad sales and subscriptions, they’re immune from the pressures of the actual commercial journalism business: they’ll never be allowed to shut down because of the value they provide their campuses.

Alyssa

The Washington Post’s Paywall Will Measure The Relevance And Importance Of The Washington Post

The Washington Post’s announcement yesterday that the paper will erect a paywall that charges readers who access more than 20 pieces of content per month was probably inevitable. As much as papers and other publications have tried to monetize online viewers, the infrastructure of those publications were built on the revenues from a model that could extract more money from readers: you’re always going to be able to get more money from audiences when, without paying it, they can’t access the information or data they want at all.

But even as publications that were built on subscriber fees collectively move in the direction of paywalls, the ways they design those paywalls say a great deal about what those publications perceive as their strengths and weaknesses. The Post, the paper explained, “will exempt large parts of its audience from having to pay the fees. Its home-delivery subscribers will have free access to all of The Post’s digital products, and students, teachers, school administrators, government employees and military personnel will have unlimited access to the Web site while in their schools and workplaces. Access to The Post’s home page, section front pages and classified ads will not be limited.”

Government employees and military personnel are some of the Post’s bread and butter—other national papers don’t cover issues like federal compensation or government openings and closings the same way the Post does, so the Post’s competitors on those issues are trade publications like my former employer, Government Executive. If the Post was confident that its coverage in those areas was vital to its readers, and that it would beat its competitors, it might make sense for them to keep government employees outside of the paywall rather than giving them a passthrough, because those readers would be a reliable source of revenue. But giving them a loophole suggests that the Post needs their eyes but doesn’t trust this core consumer audience to pay for the content—it’s a sign of weakness where the publication should be strong.

It also remains to be seen, I think, how the Post will handle its online-first properties, like Ezra Klein’s Wonkblog. While paywalls are an attempt to recreate the subscription model for the internet age, things like Wonkblog or Max Fisher’s blog lived online first, and trying to move them into a new business model might split up their readership. Paywalling them would be a retreat from the Post’s ventures into digital development, a sign that the company is continuing to have trouble running a mixed strategy. The New York Times’ move to a paywall demonstrated that, even if the paper has had to continue buyouts and reduced ambitions, its core readership remains relatively strong and committed. The Post’s paywall comes with lower expectations in the form of its loopholes than the Times’ has. But even with that curve, I’ll be curious to see what the paper’s final grade turns out to be.

Alyssa

The Death Of The Boston Phoenix And The Alternative-Weekly Journalism Pipeline

I’ve been in a state of nostalgia since yesterday when word came down from publisher Stephen Mindich that the Boston Phoenix, which any teenager growing up in Boston or the suburbs thereof worth her or his salt should have loved, will no longer publish. The Phoenix was distributed for free rather than on a subscription model, and the reasons for its demise are correspondingly probably different than the ones that have contributed to the long decline of the Boston Globe, which is currently up for sale. It’s one thing to ask people to continue to pay for home delivery of a product, which is a significant investment of money to bring in something that takes up space in the home. And it’s another to have people get out of the hobby of picking up a paper even when it’s free, because they’re reading on devices or their phones, and the idea of

But there’s something sad about the idea that Boston, a metropolitan area that prides itself on its literacy and its history of contributions to journalism and literature, as well as on its high concentration of academics, students, and other brain workers, couldn’t keep an alternative weekly alive. It’s sad, too, that the parts of the Globe worth reading have essentially been whittled down to their Sports and Ideas section. We can’t count on local culture, or literate pride, to save alternative newspapers, much less to support non-alternative publishing.

Over at Vulture, David Edelstein, who started his career as a movie critic at the Phoenix, makes a point about what else we’re losing other than a vibrant media environment when alternative outlets close:

There wasn’t a single hack at the Phoenix when I was there — no one who didn’t care deeply about his or her prose. My first editors, Carolyn Clay (theater) and Stephen Schiff (film) still rank among the best I’ve ever had. The Phoenix (and Real Paper) had been a place for critics like Janet Maslin and David Denby and Jon Landau to shine. Lloyd Schwartz was and is brilliant on classical music. Charlie Pierce — now a superlative political blogger for Esquire — was there, along with writers I deeply admire such as Gail Caldwell, Caroline Knapp, Laura Jacobs, Michael Sragow, Scott Rosenberg, Josh Kornbluth. I’m forgetting many others, but not my colleague on the film desk, Owen Gleiberman, who was among the most generous and convivial I’ve ever known.

In his writing about blogging for free, Ta-Nehisi Coates has also talked about the importance of his work on the Washington City Paper in his future career. Alternative outlets are critical incubators for people with ideas, perspectives, or interests that don’t fit neatly into the slots national publications have available. Those papers provide not just opportunities for those people to write, something that remains available on the internet today, albeit for less money, but opportunities for those people to write and get edited by strong editors. Probably the most critical place I worked in my career before coming to ThinkProgress was Government Executive, a trade publication where I covered federal personnel policy, and got edited by people like Anne Laurent and Tom Shoop. Even though I’m not still writing about the Federal Retirement Thrift Investment Board (which: shockingly interesting), I still rely heavily on their lessons about everything from which kind of music is most conducive to writing features to what kinds of details grab readers. But I’ve spent a lot of time learning culture writing on the fly, and by doing, and without the oversight of a former critic. I don’t think there’s anything wrong with doing it that way, or with anyone else starting your own blog, or writing for Tiny Mixtapes, or whoever else will have you. But I do think that it’s a real loss when outlets where people can get extensive editing and professional training in criticism, in local reporting, and in a lot of other skills, close. Diffusing the structure by which people get opportunities has a lot of advantages. But removing places where it’s possible to get a lot of professional education and improvement isn’t one of them.

LGBT

Denver Post Defends Front Page Picture Of Gay Speaker Kissing

Photo Credit: Craig F. Walker, The Denver Post

The Denver Post commemorated yesterday’s passage of civil unions in Colorado’s House with a front-page picture of Speaker Mark Ferrandino (D) kissing his partner Greg Wertsch — complete with a bottle of formula on the desk that belongs to their foster child. Anticipating negative reactions from readers, the editors published a defense for running the picture, arguing that it “shows the truth, no matter how objectionable” [see update below]:

One of the missions as journalists is to take our readers where they can’t go, and the speaker’s office is definitely one of those places. Ferrandino, who is gay, has been fighting to get this bill passed for at least the last three years, and he spoke eloquently on the subject while the bill was being debated. So it made sense to get his perspective. [...]

We have received objections to our photographs of gay couples before, so we all knew there would likely be a negative reaction to running the picture of Ferrandino. The civil unions vote was historic for Colorado and celebrating it was not a surprise. That led one editor to note, “We have no issues showing a straight couple kissing on election night.”

Another detail that made the photo so compelling was the baby bottle on Ferrandino’s desk. It belongs to the foster child he and his partner have; given that the civil unions bill offered protections for children and families, it was another element that gave context.

There is a difference between a picture that people object to and an “objectionable” photo. It’s disappointing that the editorial board thought the decision was “difficult.” Indeed, the one editor’s observation is key: it’s not kissing that people object to — it’s homosexuality . What has proven to be one the most effective ways to shift people’s opinions on gay rights is knowing gay people and learning about their lives and their families. No number of objections changes the reality that the Speaker of the Colorado House is a gay man with a loving partner and child; and reporting on reality is never a difficult decision.

Update

Editor Linda Shapley added a note clarifying a change to the originally posted headline:

After reading the comments, I’m altering the headline from “no matter how objectionable,” to “even if it offends some.” I’ve certainly dealt with some callers who are upset with the use of the photo, but my intent was not to label the photo (or the act) objectionable. As I’ve often said, everyone needs an editor, and I appreciate the comments. — Lin

Alyssa

National Center for Public Policy Research Accuses ABC And ESPN Of Liberal Bias

In the annual meeting of the Disney Company’s shareholders on Wednesday, Justin Danhof, the general counsel for the National Center for Public Policy Research, which owns Disney stock, asked company president Bob Iger what he intended to do to about a liberal bias in the company’s news outlets, including ESPN and ABC News:

It’s particularly strange to hear Danhof cite Rob Parker suggesting that Robert Griffin III was “a cornball brother” for being engaged to a white woman and possibly having Republican political beliefs as evidence of some sort of liberal bias on the part of ESPN. The idea that it’s liberal to believe that people should date and marry within their racial and ethnic groups as a form of solidarity has no particular basis in the existing discourse. And while it’s not unreasonable to debate why African-American or Latino voters tend to vote Democratic or Republican based on those parties’ histories and platforms, I don’t know that there are a lot of people on either side of the aisle who saw Parker’s condemnation of Griffin as a constructive contribution to that debate. But in any case, it wasn’t as if Disney endorsed Parker’s analysis of Griffin’s racial loyalties. ESPN suspended Parker for 30 days over the comments and ultimately chose not to renew his contract, citing his comments about Griffin as a factor.

The example of Brian Ross suggesting that the shooter at the Aurora, Colorado midnight screening of The Dark Knight is potentially a better example of bias, but it’s also a case study in how a broken reporting and vetting process can interact with political assumptions to put bad information on the air. The problem is less that Ross made that assumption—I don’t think there’s anything wrong about thinking through potential political affiliation and other motivations or influences as inspirations for reporting— but that he broadcast it without ensuring that it was factually accurate. If there were procedures in place that prevented Ross from attributing political motivations and organizational affiliations to the man who turned out to be James Holmes without solid reporting behind it, then the fact that he considered Holmes’ affiliations off-air wouldn’t have mattered. And it’s not as if it would be appropriate to have a rule that prevented, say, the on-air identification of Holmes as a Democrat or a member of an Occupy group, if that had turned out to be correct. The problem isn’t politics. It’s fact-checking. Iger’s acknowledgement that “we have at times either presented the news in a slightly inaccurate way through mistakes or in ways that we weren’t necessarily proud of,” is the right problem to identify. But it’s true that it would have been helpful if ABC News president Ben Sherwood had been more willing to publicly address the procedures or violations thereof that lead to Ross’ broadcast, which would have shifted the emphasis from political problems to reportorial ones.

Shifting that debate won’t satisfy everyone, of course. There are some conservatives who will always work backwards from outcomes, convinced that reporting that doesn’t reach conservative conclusions must be flawed because it didn’t arrive in a place that confirms their worldview or that makes them comfortable. But news organizations should stick to fixing processes that produce both inaccuracies and the perception of bias, rather than letting themselves be nudged into seeking outcomes that will take heat off of them.

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